Legal Eagles

A year later, these female cadets are still waiting for an apology. A lawsuit may be their only hope.

A year after Westword broke the story of the biggest scandal in Air Force Academy history, the school's new leaders are working tirelessly to implement programs and alter a climate that's been described as hostile toward women. In fact, they hope that one day the academy will be regarded as a model of how to handle such a crisis.

But former cadets say it will take a lot more than new policies and procedures to make that happen. It may take a lawsuit.

Since Jessica Brakey, Lisa Ballas and Justine Parks came forward last January with their stories of rape and retribution ("The War Within," January 30, 2003), dozens of other women have also gone public. Sixty women contacted Senator Wayne Allard seeking a solution to the problem, and soon everyone from the New York Times to Oprah Winfrey was interviewing cadets. Allard and other congressmen called for the ouster of top officials and demanded investigations, one of which found that there had been 142 sexual-assault reports at the academy since 1993, when the institution had last revamped its policies after several rapes. But many women said that after they reported incidents in recent years, their assailants received little or no punishment, and they themselves were disciplined because they had been drinking. Others claimed they'd been pushed out of the academy after they reported being raped.

As public pressure mounted, top Air Force brass reacted. In March, Air Force Secretary James Roche removed the top four officers at the school and issued the "Agenda for Change," a lengthy document calling for reforms that range from clustering women's dorm rooms together to altering the power structure among cadets.

But while efforts are being made to protect the women who are on campus, to date nothing has been done to compensate the victims for their lost education or get them counseling. The academy hasn't so much as apologized to them. "That would mean a lot to me. For them to formally say 'sorry' would be a huge load off my chest," Jessica says. She would also like to see the alleged rapists investigated because, in many cases, they went on to graduate and serve in the Air Force.

"We've not yet filed our complaint, but if the Air Force doesn't step up and do the right thing, we will," says Joe Madonia, a Chicago attorney who, along with Atlanta lawyer Jim Cox, is representing seven former cadets.

"We should be given the same rights as everyone else," Jessica adds. "Just because you're in the military doesn't mean you shouldn't have the right to justice."

But a 1950 U.S. Supreme Court decision resulted in the Feres Doctrine, which makes it difficult for servicemen and women to sue the military. The doctrine, which came out of three cases in which soldiers were killed or injured while on active duty, protects the government from being sued "for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." Madonia, however, doesn't believe the doctrine's intent is to shield the military from culpability for crimes that shouldn't be expected to arise during active duty -- such as rape. "I feel that the judiciary, when given the opportunity, will agree," he says.

During a telephone conference with Pentagon leaders months ago, Cox tried to discuss the possibility of restitution. "We did not pursue those discussions when it became clear that their attitude continued to be adversarial," the Atlanta attorney says. "The attitude was, ŒNo matter what these women have been through or how culpable the leaders are, why should we talk to them if we can beat them in court -- or at least try?'

"We have not seen anything from the Air Force that indicates to us that they're prepared to treat these women as victims who have suffered and need help putting their lives back together."

Jessica is a good example of a cadet who could benefit from some help. She is in the unusual position of being part cadet, part civilian. She has been in limbo since October 31, 2002, when then-superintendent John Dallager recommended to Roche that she be discharged because emotional problems made her unfit for service -- something she attributes to the stress of being raped by a cadet. But Roche still hasn't decided whether to discharge her, so she can't qualify for veterans' benefits. Jessica is entitled to cadet benefits, but she has been battling with the academy for months to reimburse her health-care providers for counseling services ("Once Bitten, Twice Shy," March 13, 2003). Only in recent weeks has the academy started paying the bills. "I've had collection agencies after me for thousands of dollars," Jessica says.

She wishes the Air Force would give her the diploma she was only months from getting when she was kicked out. Jessica, who lives in Denver and is currently unemployed, wants to enroll in a clinic in Menlo Park, California, that specializes in treating veterans for post-traumatic stress disorder. But she also wants to help force the academy to change its culture -- especially considering that a recent survey revealed that 22 percent of male cadets don't believe women should be serving alongside them.

One of the first steps the academy took in changing the culture was to stop the belittling way in which upperclassmen treated underclassmen. Freshmen were at constant risk of being screamed at and disciplined by any upperclassman they encountered. "If they see you walking down the hall, they can ask you what's on the menu for dinner, and if you don't know, you have to drop down and give them twenty," recalled Jean Murrell, one of two reservists formerly stationed at the academy who told Westword last April that they couldn't understand why the academy was so different from the Air Force.

"In officer training school, a commissioned officer is responsible for fifty or so trainees. You report directly to him, and he's responsible for you. I didn't see that at the academy," notes Major Joe Grisham ("Top Guns," April 3, 2003).

Because of feedback like that, Roche removed some of the power the older cadets held while new academy leaders, such as commandant of cadets Brigadier General Johnny Weida, further refined cadet roles. The academy, Weida says, has "reshaped the whole environment and thinking from one of a rite of initiation, a rite of passage where you could demean and harass cadets and you could yell at them and that was your primary tool in your leadership kit bag, to one of positive motivation and inspiration -- a model that is used in our Air Force, quite frankly. As I've told our cadets, 'Why should I let you use leadership tools and techniques that you can't use on the day you graduate?'"

The academy modeled its new Officer Development System after that of the Military Academy at West Point, which professionalized its plebe system in the mid-1990s. Older Air Force cadets will now act as mentors rather than masters. The school is also doing away with the cadet disciplinary system, which punishes cadets for everything from failing to shine their shoes to drinking in the dorms. Under that system, cadets who violated academy rules -- no matter how minor -- were given demerits and made to march tours on base while carrying rifles; once cadets accumulated enough demerits, they had to appear before a military review board that would consider them for disenrollment. All cadet infractions will now fall under the Uniform Code of Military Justice.

"On the high end of the Uniform Code of Military Justice, you could still disenroll that cadet, but instead of the cadet meeting that board with 200 demerits and 300 tours, he may have four letters of counseling and one letter of reprimand," Weida explains. "The Air Force disciplinary system is more developmental; it's more positive, whereas the cadet disciplinary system over the years has been viewed in kind of a negative punishment aspect."

The academy's new superintendent, Lieutenant General John Rosa, says the changes aren't intended merely to make the academy a kinder, gentler place; bringing the school in line with the Air Force will also help officers identify problems like sexual assault. "Part of our plan here as we lay the foundation for these next several years is to not find ourselves in a similar situation ten years from now," Rosa explains. "We went through this in 1993. We had a sexual-assault issue, and General [Brad] Hosmer, the superintendent at the time, did some great work, and over time, for whatever reason, we found ourselves back in a similar situation."

Past academy leaders, including former superintendent Dallager, who was demoted as a result of the scandal (and has recently been appointed to a foundation that raises money for academy scholarships), claimed they were taken aback by the severity of the problem. Rosa vows not to let that happen again and is changing the way the academy tracks trends, such as disciplinary problems, academic performance and reports of criminal activity. "If we align those programs at the academy with what we're doing in the Air Force, it's what all the rest of us have lived with, and it's what all of us understand, so when we start to have problems, when we start to deviate from norms, we'll know that," Rosa says.

Since April, when the first of the new leaders arrived, the academy has received 21 reports of sexual assault; some took place a year or more in the past, but twelve are new assaults. Rosa reviews the numbers regularly and will survey cadets twice annually about the culture at the academy. He also plans to survey faculty and staff, as well as Air Force commanders, in an effort to determine how graduates are faring in service.

Jessica and her attorneys believe that the academy's problems won't be corrected until its former leaders are brought to justice. "They need to apportion responsibility where it needs to be. Cadets can smell hypocrisy a mile away, and when the Air Force admits there was a problem and then refuses to name any of the individuals who were responsible for it, it's hypocrisy at its worst," Madonia says.

Some cadets and victims'-rights advocates certainly smelled hypocrisy when a working group of Air Force investigators assembled by Roche determined last June that there was no problem. The group, led by Air Force General Counsel Mary Walker, found "no systemic acceptance of sexual assault at the academy, no institutional avoidance of responsibility, or systemic maltreatment of cadets who report sexual assault." That was followed in September by vastly different findings from an independent panel led by former Florida congresswoman Tillie Fowler. The panel, which was formed at the request of Congress, found a "chasm in leadership" at the academy that "helped create an environment in which sexual assault became a part of life."

Fowler's group singled out Dallager, former training group commander Colonel Laurie Sue Slavec, current dean of faculty Brigadier General David Wagie and former commandant of cadets Brigadier General Taco Gilbert, who initially came under scrutiny because his comments to Westword about a former cadet epitomized the blame-the-victim mentality at the academy. The panel members argued that "every effort must be made to formally document" the failure of recent and past academy leaders and requested that the Inspector General for the Department of Defense investigate those leaders. The Defense report should be released by March.

So far, the academy has implemented all but one of the panel's 21 recommendations, which called for everything from more oversight by the supervisory Academy Board of Visitors to an extension of tenure for the upper leaders. But the panel also recommended confidentiality for victims, who now are obligated to divulge their names to an academy response team that handles reports of sexual assault, oversees investigations and provides medical care and counseling. "We're struggling with our confidentiality policy, and we expect a decision here in the next few weeks," Rosa says. "I believe we've got to give young people trust and confidence in the leadership and in a system that says they're not going to be revictimized, they're not going to be blamed, they're not going to be ostracized for a crime that's been committed against them."

Rosa is struggling with the academy's admissions policy, too. At an October press conference, he said he wanted to question potential cadets about their views toward women. That topic will be discussed in February, when deans, commandants, athletic directors and admissions officials from all three service academies meet in Colorado Springs for their annual superintendents' conference, which was canceled last year due to the scandal. "If this crisis has done one thing between our academies, it's brought us closer together, and it's got us talking much more and sharing information. We're going to talk about admissions and brainstorm how we can make sure we're getting the right young person here," Rosa says.

Soon he will talk about the academy's new amnesty policy, as well. Although the academy already had a policy stating that "cadet victims will generally not be disciplined for self-identified violations of cadet instructions (such as pass violations, unauthorized alcohol consumption, or unauthorized dating) which may have occurred in connection with an assault," it wasn't always followed. So the Agenda for Change called for full amnesty for all victims. The change was seen by victims and victim advocates as a step in the right direction but was criticized by others for its potential for abuse. Although Rosa hasn't seen any instances of cadets crying rape to avoid punishment for other infractions -- amnesty has been requested only a couple of times since April -- he says the academy will reconsider the policy in March, on the first anniversary of the Agenda for Change. By then, Rosa says, "We'll have our confidentiality policy straight and see how amnesty dovetails with confidentiality."

Both Rosa and Weida are hopeful that the Air Force Academy will be better off for having gone through all the changes and that it will produce better officers as a result. "Through this crisis is going to be born an institution of excellence that I predict, six months from now, a year from now, two years from now, America is going to look to and go, 'Wow, how did you do that? How did you go from crisis to that level of excellence?'" says Weida. "We will look back on this time still as a bad time, but it will be a birth, a beginning of something we can all be proud of."

Jessica Brakey isn't holding her breath. She'd like there to be more civilian oversight at the academy. "It's been proven that when it comes to sexual assault, the academy can't be trusted to regulate itself," she says. "It's easy for new leaders to come in and change things when everyone's looking. But when no one's looking anymore, will they still be concerned about sexual assault?"

Read related stories in our Inside the Air Force Academy archive

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